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Law Rules

How we resolve our disputes

Entries in lawyers (11)

Wednesday
Aug142013

Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.

 

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

Monday
Dec032012

It's All Negotiable

I recently advised a client concerning a real estate purchase. My client had signed an offer to purchase many months ago, but the seller was under water with his lender and was trying to negotiate a short sale. The seller’s real estate broker wanted my client to sign a new offer to purchase, giving the seller another 60 days to complete the short sale negotiations. But my client did not want to delay for another 60 days. So I told the broker that my client would not sign another offer to purchase unless we saw some concrete progress toward completing the short sale. The broker and seller did not want us interfering in their negotiations with the lender, and did not want to show us the seller’s financial documents. But when I told the broker of my client’s concern with the length of time for completion specified in the offer for completion of the short sale approval, they came back with a revised proposal for 20 days. That was acceptable to my client. Now, if the seller or lender is still dilatory, my client can get out of the deal in a relatively short period of time. And the seller gets his new offer, which he says will help pave the way for approval. That may or may not be, but at least both sides now have a written offer they can live with. Sometimes, it is the seemingly small things that make a big difference.

I have said it before and I’ll say it again. When it comes to contracts, it is all negotiable. Even when one party presents a printed form, it is not written in stone. With computers, forms can be redrafted and reprinted much more easily and quickly today than when I began practicing law. That’s a good thing. People need to consider what they really want or need when making big purchases or commitments of time and money. They should not be deterred by the prospect of having to redraft some written document. Even the terms of written contracts to resolve disputes (e.g., Agreements to Mediate or Arbitrate) are negotiable—until you sign on the dotted line. So be sure you read and understand what you are signing. If you don’t, get an attorney to look it over and explain the potential pitfalls and consequences before you sign. If a dispute arises concerning the meaning or effect of the terms of the contract after you sign it, the parties to the contract can get attorneys and litigate in court, or they can agree to resolve it through arbitration or mediation, out of court.

In any event, it is wise to remember that courts are not in the business of creating or negotiating contracts for you. That is your job, with or without the help of an attorney or mediator. Courts either enforce agreements or decide that they are not enforceable. The time to negotiate is before the hammer falls. When a large amount of time, money, valuable property or assets are at stake, it is best to seek out an experienced attorney or mediator to help you.

Saturday
Jan212012

Is it just business or is it personal?

After a trial is over, it is customary for opposing counsel to shake hands before leaving the courthouse. While many trial lawyers are highly combative and competitive, a trial is rarely a personal contest between lawyers. While lawyers like to win, they usually go on to fight another day. But some clients have difficulty understanding how lawyers can do battle in the courtroom for days (or sometimes weeks) and then shake hands when it is all over. Of course, a trial is not always the end of the dispute. There can be appeals, reversals and retrials. A trial might be merely one tool to gain leverage in getting the opposing party to do you what you want them to do. Ultimately, a final judicial decision will put an end to the dispute, but it does not necessarily put an end to the enmity between the parties.

Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.

Tuesday
Aug302011

Back to School

It is the end of August, the “back to school” time of year. Yesterday on the radio, I heard a discussion of what parents need to do to prepare their children for the new school year. The participants began talking about the usual books, pens, paper and other supplies, technology, clothing, etc. Fortunately, before I tuned out, they turned to the more important question of how you prepare children mentally. How do you put them in the right frame of mind to learn both the substance of what is being taught as well as how to interact with teachers and other students? It was good to hear a discussion that encouraged parents to get involved with their children’s education. Too many parents these days use the schools merely as babysitters, to take care of their children while the parents are at work. Education should continue at home, not just in the classroom.

The discussion soon focused on problems that arise at school that can turn children off to education, like bad teachers and bullies. What is a parent to do? How involved do they need to be? What lesson should parents give children to prepare them for obstacles at school? The answer was a pleasant surprise to me. In an age where some parents are too uninvolved and others are over-involved (so-called “helicopter parents” who hover over their children), I expected to hear something about finding the middle ground or happy medium. Instead, what I heard was elegantly simple: “Work it out!” The participants in this discussion did not urge parents to monitor every problem, call school to complain about bad teachers or bullies, or help their children out of every difficulty. Rather, they urged parents to tell their children that problems and conflicts will occur, and children must be prepared to work it out and resolve the problems themselves. Of course, this requires children to know how to stand up for themselves and be their own advocates, without resorting to violence. This is something both teachers and parents should help children do. It is a skill that will help them throughout their lives. Sometimes, they will be able to do it themselves and other times they will not. But if they try, they will at least learn when they need to seek help and who to seek it from.

This discussion should be required material in business schools. I have seen people turn their business problems over to lawyers and tell them to “handle it,” when the parties themselves could have worked it out more efficiently if they knew how to communicate and advocate for themselves effectively. Fortunately, many attorneys are skilled negotiators and advocates in and out of the courtroom. But it certainly makes the attorney’s job easier if the client is also involved in and adept at the process. That is a skill that can and should be learned in school. When parties in dispute cannot get the other side’s attention or have trouble focusing on the issues, that is when attorneys or mediators need to be called in. And then it is time for everyone to go back to school and find a way to work it out.